TMI Blog2019 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... rial regarding these topics was called for over two occasions from the Petitioner and was supplied. Although the Petitioner had a remedy of statutory appeal since the order is without jurisdiction and contrary to the settled position of law, it requires to be quashed and set aside. We hold and declare that the Respondents had no jurisdiction to issue the impugned notice, consequently, the impugned order rejecting the objections is also without jurisdiction. - WRIT PETITION NO. 1902 OF 2019 - - - Dated:- 21-8-2019 - M.S. SANKLECHA AND NITIN JAMDAR, JJ. Mr. J.D. Mistry, Senior Advocate with Mr. B.V. Jhaveri and Mr. S. Sriram for the Petitioner. Mr. Akhilesh Sharma for Respondent Nos.1 and 2. JUDGMENT : (Per Nitin Jamdar, J.) Rule. Rule made returnable forthwith. Respondents waive service. The petition is taken up for final disposal. 2. The Petitioner- Supra Estates India Pvt. Ltd. has challenged the notice dated 24 March 2019 issued by the respondent- Assessing Officer proposing to reopen the assessment and the order dated 25 June 2019 passed by the Assessing Officer rejecting objections raised by the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 5. The assessment year in question is 2012-13. The impugned notice under section 148 was issued on 28 March 2019, i.e. after the expiry of four years from the end of the assessment year. 6. The period of four years is vital because of the language of section 147 of the Act. Under Section 147, the Assessing Officer has jurisdiction to reopen the assessment, if he has reason to believe that income chargeable to tax has escaped assessment. However, if the assessment sought to be reopened after four years, then there is an additional requirement, that is, there must be a failure on the part of the assessee to fully and truly disclose all material facts necessary for the assessment. The existence of these parameters is a jurisdictional requirement. If the jurisdictional requirement is not met, the Assessing Officer would not have jurisdiction to reopen the assessment after four years. 7. As regards the satisfaction of the condition of failure by the assessee to fully and disclose all material facts for assessment, there are two facets. First, the Assessing Officer must be satisfied; there is a failure to disclose all material facts. Second, even if the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration, i.e. 2012-13 is 9.54 and negative in the preceding year. Hence, in view of the above, there is no justification for receiving such a huge premium of ₹ 12,46,14,000/- considering the net worth of the assessee company and the projected project plans. 4. It is further observed that the assessee company has incurred expenses on account of legal and professional fees to the tune of ₹ 85,95,000/- for providing consultancy services by Queens Developer. The said amount has been paid for availing the consultancy services in the slum redevelopment project. Because the expenses incurred in relation to the Slum Rehabilitation Project have been debited to work in progress and above amount which has been claimed by the assessee company in the profit and loss account is not in order. Further, during the assessment proceedings for A.Y. 2016-17, it is seen that only transit accommodation is being constructed for rehabilitating the slum dweller and no income has been offered from the said project. Hence, this expenditure should have been considered under work in progress instead of claiming it as a P L Expenditure. 5. Therefore, the high share premium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is because of the result of the failure of the Petitioner to submit necessary details. 11. Earlier, by notice dated 21 August 2014, various details were called for, particularly regarding shareholding pattern, details of shareholders and various other details in 29 requirements. The record shows that the Petitioner had supplied these details on 9 September 2014 and 9 February 2015. Again 10 point details were sought on 13 February 2015. Those were also handed over on 20 February 2015. The Petitioner had given a note on the valuation of the share at a premium along with details, and all details were placed on record. The order passed by the Slum Rehabilitation Authority and the agreement entered into between the Petitioner, and the Developer was also placed on record. 12. Vide notice dated 21 August 2014, various details were called for, which were submitted by the petitioner on 9 September 2014 and 9 February 2015. These were list of firms and companies in which shareholders had equities; details of Directors; details of sister concerns and group concerns; shareholding pattern; share application money and premium; monthly summary of purchases and sales; details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46,490.26 sq.mt. Of FSI (5,00,235 Sq.ft) for free sale building. The Ready Reckoner rate of FSI on CTS 198 is ₹ 39,600 per sq mt and 208 is ₹ 31300 per sq mt ie average of ₹ 35450 per sq mt. Hence the total valuation of free sale of FSI in the hands of the company is approx. 165 crores less 65 crores for construction of rehabilitation and transit buildings for slum dwellers ie. 100 crores valuation. In order that ETGA holds 35% of the Share Capital, ET was required to bring in ₹ 74.99 Crores as detailed under. Hence it is provided in the JV agreement dated 30.7.2009 that ETA shall bring the following amounts: 1. ₹ 2,69,23,000/- Face value of 35% shares 2. ₹ 32,30,76,000/- Premium Amount 3. ₹ 20,00,000/- Interest free Unsecured Loans 4. ₹ 20,00,00,000/- Interest bearing unsecured Loans ₹ 74,99,99,000/- Total It may be noted that the shares has been allotted to ETA on the following dates against funds brought in by them. 1.6.10.2009 ₹ 21,50,00,500/-First Allotment 2.13.10.2011 ₹ 13,49,98,500/-Second Allotment ₹ 34,99,99,000/-Total. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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